Monday, September 30, 2019

In re BOLTON (9/30/19) - Can an incarcerated excessive DSL Youth offender get disqualified from Parole Provision after a new prison conviction?

PROCEDURAL ASPECT:
     This case comes from a multiple round of briefing from the Superior Court to - the Court of Appeal - to the California Supreme Court (En Banc) and returnable to the Court of Appeal - Third Appellate District. The Law office of Diane Letarte and staff worked long hours riding the roller Coaster for 4 years on this case with a potential Oral Argument set in February 2019, which was then cancel because the court was prepared to render a decision without hearing oral argument.  Sometimes less said  is best!

CA SUPREME COURT (OSC):
      The Secretary of the Department of Corrections and Rehabilitation is ordered to show cause, returnable before the Court of Appeal, Third Appellate District, when the matter is ordered on calendar, why the relief prayed for should not be granted.


Court of Appeal, Third Appellate District 

  ***Certified for Publication***

FULL OPINION at: https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=3&doc_id=2277568&doc_no=C088774&request_token=NiIwLSIkTkw2W0BNSCI9WEhIIFg6UTxbKyBeWz1SMCAgCg%3D%3D  


SHORT EXCERPT BELOW:

UNADDRESSED ISSUE:  
      What happens when a prisoner serving a sentence for crimes committed as a juvenile exceed his natural lifespan is later convicted of an offense which disqualifies him from the youth offender parole provisions of Penal Code section 3051?

SHORT ANSWER--> DISPOSITION
    The Lassen County Superior Court is directed to vacate petitioner’s 91-year state prison term for his juvenile offenses and to hold a sentencing hearing on his juvenile and adult convictions consistent with this Court of Appeal Third Appellate District's opinion.

FACTS:
     Petitioner was convicted in Contra Costa County of five counts of rape, two counts of unlawful penetration with a foreign object, two counts of forcible lewd and lascivious conduct on a child, two counts of false imprisonment, one count of attempted rape, and one count of assault with a deadly weapon, along with multiple enhancements for being armed with and using a knife and pellet pistol.  He was sentenced to 92 years in state prison, which was modified to 91 years on appeal.    

     While serving a 91-year term for crimes committed when he was 16, petitioner D’Arsey Lawrence Bolton was sentenced under the three strikes law to 25 years to life for a crime committed in prison at the age of 30.

    In this habeas proceeding, petitioner asserts his sentence violates the cruel and unusual punishment prohibition of the Eighth Amendment and asks us to order the Lassen County Superior Court to resentence him on all of his convictions consistent with the possibility of release in his lifetime, or to find he is not ineligible for youth offender parole.

     We find that resentencing on the juvenile offenses is necessary, but petitioner’s adult sentence does not violate the Eighth Amendment.  We shall vacate the 91-year term for the crimes committed as a juvenile and remand for resentencing.


COURT on RESENTENCING:
     Since petitioner has never been sentenced by a court that had the advantage of the Eighth Amendment cases discussed in this opinion, the better approach is to wait until he is sentenced by such a court before determining novel and important constitutional issues related to his sentence.  Accordingly, while the trial court must take the 25-year-to-life term for petitioner’s adult conviction into account when resentencing on the juvenile offenses, we take no position on whether the total sentence for both the adult and juvenile convictions must include a meaningful opportunity for parole as defined in Miller, Graham, Caballero, or Contreras.  Likewise, if the trial court determines petitioner’s total term must include a meaningful opportunity for parole, we leave it to the trial court to make the initial determination regarding what sentence satisfies this requirement, and the effect, if any, on the availability of elderly parole.

     The Supreme Court did not mandate a particular term that the defendants were to receive on remand in Contreras and Caballero.  (See Contreras,supra, 4 Cal.5th at p. 381 [declining to provide additional guidance for trial court on remand]; Caballero,supra, 55 Cal.4th at p. 269 [“Because every case will be different, we will not provide trial courts with a precise timeframe for setting these future parole hearings in a nonhomicide case.  However, the sentence must not violate the defendant’s Eighth Amendment rights and must provide him or her a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ under Graham's mandate”].)


     The Lassen County Superior Court is directed to vacate petitioner’s 91-year state prison term for his juvenile offenses and to hold a sentencing hearing on his juvenile and adult convictions consistent with this Court of Appeal Third Appellate District's opinion.



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